Senate Bid to Rein in NSA Spying May Fail

The Senate Judiciary Committee is expected to vote Thursday on a bill to regulate NSA domestic surveillance. But the legislation, which faces opposition from the White House, lawmakers and civil liberties groups, may not make it out of the Senate.

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This week the Senate Judiciary Committee is set to vote on legislation to regulate warrantless surveillance by the National Security Agency. The bills up for consideration are the fist attempts by lawmakers to oversee the program. And in an unusual meeting of the minds, civil libertarians and the Bush Administration are both hoping that the legislation never makes it to the president's desk.

NPR's Larry Abramson reports.

LARRY ABRAMSON reporting:

In the best of times, chairing a Senate committee is like herding some very independent cats. Witness Arlen Specter, powerful chair of the Senate Judiciary Committee, begging his colleagues to come to a business meeting so he could establish a quorum.

Senator ARLEN SPECTER (Republican, Pennsylvania): Again asking the staffs of absent senators to notify their principals to come to the session here.

ABRAMSON: That task was all the more daunting because Specter was trying to move legislation that many in Congress feel is either unnecessary or dangerous, it would allow special surveillance court known as the FISA court to oversee what the administration calls the terrorist surveillance program.

This effort to track terrorist phone calls permits warrantless eavesdropping within the United States. Most Republicans agree with Vice President Cheney, who this week repeated the official line, the president doesn't need permission to exercise his Constitutional authority.

Vice President DICK CHENEY: It is consistent with the Constitution. It is a program that is reviewed personally by the president every 45 days. He renews it only after he's been assured by our lead intelligence officials, by the Defense Department and assured by the Attorney General of the United States that it fully complies with the laws of the land.

ABRAMSON: Senator Specter doesn't agree. He says Congress needs to legislate. But in order to get those Republican cats to sit on his lap, Specter has made key changes to his bill. One basically says that nothing in his legislation limits the authority of the president to gather foreign intelligence.

For civil liberties groups, that one paragraph gives the president a license to do what they feel he's already doing, ignoring requirements that the courts approve surveillance. Nancy Libin is with the Center for Democracy and Technology.

Ms. NANCY LIBIN (Center for Democracy and Technology): Specter's bill would amend that and say that the Foreign Intelligence Surveillance Act, the criminal code or any executive Constitutional authority the president has would be the means by which he can conduct surveillance. That takes the FISA court out of the picture.

ABRAMSOM: And puts things right where they are now, Libin says. Specter has been at pains to explain that any changes are aimed at one goal, getting a bill out of committee that will finally determine whether the terrorist surveillance program really is constitutional. Specter says the language in his bill simply acknowledges the president's constitutional prerogative.

Senator SPECTER: If the president had legitimate Article Two authority to put the program into effect, it is what it is, and nothing we say in the statute will change that.

ABRAMSON: Many Democrats on the Judiciary Committee say that the president has no such authority. They fear Specter's legislation will permit the administration to say we now have the blessing of Congress and the special surveillance court to eavesdrop without a warrant.

Specter's legislation could also torpedo any congressional investigation into just how the program works. Senator Specter recently postponed sending subpoenas to telecommunications executives to ask them about their cooperation with the National Security Agency. He did that in the hopes of winning administration support for his legislation.

Nancy Libin of the Center for Democracy and Technology says Congress is supposed to investigate and then legislate.

Ms. LIBIN: What Congress really needs to do is conduct an investigation. It's legislating in the dark at this point.

ABRAMSON: The White House says the president is willing to listen to Congress on this issue, but Congress is having a hard time figuring out just what it has to tell the president as lawmakers continue to twist themselves in knots over this issue six months after the terrorist surveillance program was uncovered.

Larry Abramson, NPR News, Washington.

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